Delhi District Court
State vs Mangal Singh on 20 September, 2023
IN THE COURT OF MS DEEPALI SRIVASTAVA, METROPOLITAN
MAGISTRATE-03, NORTH WEST, ROHINI COURTS, DELHI
Cr Case No. 3482/2020
FIR No. : 39/2020
P.S. : Raj Park
State Vs. Mangal Singh
U/s. 33/38 Delhi Excise Act
State
v.
Mangal Singh
S/o Sh. Kishor,
R/o U-52, Mangol Puri Delhi
Date of institution of case : 08.10.2020
Date of reserving the judgment : 11.09.2023
Date of pronouncement of judgment : 20.09.2023
JUDGMENT
1. S. No. of the Case: 3482/2020 2. Date of Commission of Offence: 20.01.2020 3. Date of institution of the case: 08.10.2020 4. Name of the complainant: HC Parveen Kumar 5. Name of the accused: Mangal Singh 6. Offence complained or proved: U/s 33/38 Delhi Excise Act 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 20.09.2023 State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No. 1/11 Digitally signed by DEEPALI DEEPALI SRIVASTAVA SRIVASTAVA Date: 2023.09.20 17:13:50 +0530 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Mangal Singh has been sent to face trial with the allegations that on 20.01.2020 at about 07:10 PM in front of H.No. U Block, Near Church, Mangolpuri, Delhi within the jurisdiction of PS Raj Park, accused was found in possession of illicit lliquor for sale in Haryana, without any license or permit. Investigation was carried out. Upon completion of the investi- gation the instant charge-sheet for the offences punishable under section 33 Delhi Ex- cise Act was filed by the investigating officer against the accused. The accused was then summoned by the undersigned.
2. The copies of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 33 Delhi Excise Act was framed on 03.12.2021 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined three witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW-1 ASI Parveen deposed in his examination in chief that on 20.01.2020, he was posted at PS Raj Park as a HC. On that day, he along with Ct. Mohit was performing patrolling duty on Govt. Motor cycle. During patrolling, at about 07:00 pm, they State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No.Digitally DEEPALI by 2/11 DEEPALI signed SRIVASTAVA SRIVASTAVA Date: 2023.09.20 17:14:01 +0530 reached U-Block, Mangolpuri, Delhi near Church and one person was sighted com- ing from the side of fish market towards UT Block, Mangolpuri having a plastic bag on his right shoulder. After seeking them he got scared and tried to walk inside the gali UT Block Mangolpuri Delhi. On the suspicion, he chased and apprehended him and inquired about the plastic bag but he did not give satisfactory answer. He checked the aforesaid bag and found illicit liquor and informed to the police station about the said recovery. After some time, HC Munde Tukaram reached at the spot and they handed over the custody of accused Mangal Singh along with the case property to the HC Munde Tukaram. IO recorded his statement same is Ex. PW-1/A. IO re- quested 4-5 passer by to join the investigation but none of them agreed and went away without disclosing their names and addresses. Thereafter IO/HC Munde Tukaram checked the aforesaid bag and found, containing 100 quarter bottles of illicit liquor of Asli Santra Masaledar Desi Sharab for sale in Haryana. IO took out 10 quar- ter bottles for sample from the case property and wrapped into the white cloth and sealed the same with the seal of "TM" and remaining recovered liquor again put in the aforesaid katta and same was duly sealed with the seal of "TM". Seal after use was given to him. IO seized the case property vide seizure memo Ex. PW-1/B and IO also filled up form no. 29 Excise. Serial no. 1 was given to the aforesaid katta at se- rial no. 2 was given to sample bottles. IO also prepared the rukka on his statement and handed over the same to him for registration of the FIR. Accordingly, he went to the police station to get the FIR registered. After some time he came back to the spot along with copy of FIR and rukka and same was handed over to the IO. IO also pre- pared the site plan Ex. PW-1/C. IO arrested and personally searched the accused vide memo Ex. PW-1/D and Ex. PW-1/E and IO also recorded the disclosure statement of the accused, same is Ex. PW-1/F. IO also recorded his statement U/s. 161 Cr.PC. Thereafter, MHCM produced the copy of order con/Mise/2020/4539-40 dated 25.09.2020 of the then Asstt. Commissioner Excise vide which it has been directed that the stock seized/confiscated liquor at Ps Raj Park be destroyed which is Ex. P-1.
Digitally signed State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No. 3/11DEEPALI by DEEPALI SRIVASTAVA SRIVASTAVA Date:
2023.09.20 17:14:07 +0530 Copy of order dated 30.09.2020 of then SHO PS Raj Park vide which the case prop- erty of the present case has been destroyed, same is Ex. P-2. MHCM also produced one sealed pullinda duly sealed with the "MK" and bearing the case particulars same was opened and one quarter bottle of Asli Santra Masaledar Desi Sharab for sale in Haryana illicit liquor was taken out and shown to the witness. The witness correctly identified the same as recovered from the possession of accused. Case property is Ex. P-3.
PW-1 has correctly identified the accused person and was also cross examined by Ld. counsel.
6. PW-2 HC Ct. Mohit has deposed the same facts as deposed by PW-1.
PW-2 has correctly identified the accused person and cross examined by Ld. counsel.
7. PW-3 ASI Munde Tukaram Sainaji deposed in his examination in chief that on 20.01.2020, he was posted at PS Raj Park as a HC. On that day he received DD no. 52B and he reached at the spot i.e. U-Block, Near Church Mangolpuri Delhi and met with HC Parveen and Ct. Mohit at the spot. They handed over him the one plastic katta of illicit liquor with the accused Mangal. He checked the plastic katta and found that it contained 100 quarter of Asli Santra Masaledar Desi Sharab for sale in Haryana only of 180 ML. He had taken 10 quarter bottles from the plastic katta as a sample and the remaining 90 quarter bottles kept in the same plastic katta sealed with the seal of "TM". He had prepared the seizure memo. He had also filled for M-29. The seizure memo is exhibited as Ex. PW-1/B bearing his signature at point B. He had prepared the personal search memo which is Ex. PW-1/E bearing his signature at point C. He recorded the statement of HC Praveen in his own handwriting and pre- pared the rukka which is exhibited Ex. PW-1/A bearing his signature at point B and he had sent it to the PS through HC Praveen for the registration of FIR. After registra- tion of FIR HC Praveen handed over him the copy of FIR. After registration of FIR HC Praveen handed over him the copy of FIR and original rukka. He prepared the ar- Digitally signed by State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No.DEEPALI DEEPALI SRIVASTAVA 4/11 SRIVASTAVA Date:
2023.09.20 17:14:14 +0530 rest memo of accused which is Ex. PW-1/D bearing his signature at point C. He recorded the disclosure statement of the accused which is Ex. PW-1/F, bearing his signature at point C. Thereafter he sent the sample of case property through Ct. Mohit vide RC no. 18/21/20 for the examination .
PW-3 has been cross examined by Ld. counsel.
8. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
9. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
10. Short point for determination before the court is as under -
"Whether on 20.01.2020 at about 07:10 PM in front of H.No. U-Block, Near Church, Mangolpuri, Delhi, within the jurisdiction of PS Raj Park, the accused Mangal Singh was found in possession of illicit liquor, without any license or permit?"
11. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of illicit liquor without permit and submitted that accused be convicted of the offence charged.
12. Per contra, it is argued by the Ld. counsel for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that non-joinder of public witness despite availability cast shadow of doubt on prosecution story. It is further argued by Ld. Digitally signed by DEEPALI State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No. 5/11 DEEPALI SRIVASTAVA SRIVASTAVA Date:
2023.09.20 17:14:20 +0530 LAC for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
13. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
14. In present case, the prosecution was duty bound to prove the possession of the illicit liquor with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of illicit liquor in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 07:10 pm and it is evident from the testimony of PW-1 & PW-2 that the accused was apprehended alongwith the alleged unauthorised illicit liquor at a public place but still no public independent person was cited as a witness in this case.
15. The aforesaid observations have been deduced from the testimony of PW-1 as well as PW-2. As per version of PW-1, after apprehension of the accused, public persons were available at the spot. PW-1 has stated that IO requested 4-5 passersby to join the investigation but all the passersby refused to join the same. Further, IO also stated that no notice was served upon the passersby by him, who refused to join the investigation. The said explanation given by IO cannot be accepted by the court since, the IO was under obligation to issue notice in writing to the public persons, Digitally signed by State vs. Mangal Singh FIR no.39/2020 PS Raj Park DEEPALIPage No. 6/11 DEEPALI SRIVASTAVA SRIVASTAVA Date:
2023.09.20 17:14:31 +0530 who refused to join the police investigation particularly in the background when the accused has already been apprehended by the police and there was no apprehension that accused might escape. Moreover, the IO has not even placed on record the names of the passerby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments:-
In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Digitally signed by DEEPALI DEEPALI SRIVASTAVA State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No. 7/11 SRIVASTAVA Date:
2023.09.20 17:14:44 +0530 Investigation Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not Digitally signed by DEEPALI State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page DEEPALINo. 8/11 SRIVASTAVA Date:
SRIVASTAVA 2023.09.20 17:14:50 +0530 available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
16. Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Making bald averments that 4-5 passersby were asked to join the investigation but none agreed without giving any written notice to them does not inspire the confidence of the Court.
17. The next inconsistency in the case of the prosecution is the failure to prove the entries of the apprehension of the accused on 20.01.2020 by police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor from the possession of the accused at the relevant time by the police officials who were on patrolling duty at the relevant time and place, when they apprehended the accused as per the prosecution story. PW-1 in his cross examination has admitted that DD No. 52B does not mention the name of the accused, and the quantity of the alleged illicit liquor.
18. Since public persons were not joined in the investigation and even the entry DD 52B not mentioning any details of the accused or the illicit liquor at the relevant time of the apprehension of the accused casts a doubt on the story of the prosecution.
19. Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to PW-1, who was also a material prosecution witness being a witness to the alleged recovery of the illicit liquor from the possession of the accused, such material witness of a case is always interested in State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No. 9/11 Digitally by DEEPALI signed SRIVASTAVA DEEPALI SRIVASTAVA Date:
2023.09.20 17:14:57 +0530 the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
20. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sar- wan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case Digitally State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No. 10/11 signed by DEEPALI SRIVASTAVA DEEPALI SRIVASTAVA Date:
2023.09.20 17:15:03 +0530 that:- "There may also be an element of truth in the prosecution story against the ac- cused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeach- able evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had ob- served that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt.
21. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Mangal Singh beyond reasonable doubt. Accordingly, the accused Mangal Singh is acquitted for the offence punishable u/s 33 Delhi Excise Act.
22. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally signed by DEEPALI DEEPALI SRIVASTAVA
SRIVASTAVA Date: 2023.09.20
Announced in open Court (DEEPALI SRIVASTAVA)
17:15:08 +0530
on 20th Day of September, 2023 Metropolitan Magistrate
North-West, Rohini, Delhi
State vs. Mangal Singh FIR no.39/2020 PS Raj Park Page No. 11/11